Bangladesh Braces for War!

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Tensions in a simmering dispute over drilling rights in the Bay of Bengal were stoked last week after lawyers from Foley Hoag filed two international arbitration claims on behalf of Bangladesh against neighboring Burma and India. After Bangladesh brought in its legal guns, the real guns started to come out.

At issue between the three countries, each of which border the world's largest bay, are competing claims to exclusive zones thought to contain huge deposits of oil and natural gas. Bangladesh's claims to the strategic energy reserves have raised the ire of its neighbors, particularly Burma. In response, Burma began moving troops along the 200-mile border between the two Southeast Asian nations.

According to Foley Hoag partner Paul Reichler--whose international exploits have been covered before in this space (click here, here, and here)--the arbitration claim was meant to avoid violence, not cause it.

"The buildup by the Burmese armed forces actually began before the notice of arbitration was served," he says. "But it certainly seems to have intensified since then and hopefully they won't be a precursor to any unfortunate incidents."

Foley Hoag began advising Bangladesh in March, Reichler says. The three countries conducted negotiations over the next few months to try and resolve their differences, but the talks eventually broke down. On October 8, Bangladesh sent complaint letters to India and Burma indicating its intent to sue to protect its maritime boundary.

Reichler, who two years ago scored a big win for Guyana in a similar dispute with Suriname (represented by lawyers from Cravath, Swaine & Moore), says that maritime boundary disputes are on the rise. The reason: advances in technology and new drilling techniques have made tapping offshore energy reserves more economically feasible.

The United Nations Convention on the Law of the Sea, which Bangladesh's arbitration was brought under, allows countries to claim an exclusive zone up to 200 miles offshore. Countries can also lay claim to additional undersea territory if it's part of a continuous continental shelf that extends from the shoreline.

But Reichler says the Bay of Bengal complicates traditional definitions of maritime boundaries. Several major rivers feed into the bay--the Ganges River Delta in Bangladesh is the largest of its kind on earth--and sediment from runoff causes the continental shelf to extend far offshore into areas claimed by Bangladesh, Burma, and India.

With the Bay of Bengal only being roughly 400 miles across, Reichler says that the claims by the three countries to territorial waters converge at various places, thus leading to the underlying dispute.

Reichler says the disputed claims have made it almost impossible for foreign oil companies to drill in the area, a tremendous setback to a developing country like Bangladesh that could use both the revenue and energy produced from such drilling.

Burma and India have 30 days to respond to Bangladesh's arbitration claim by nominating their own arbitrators, Reichler says, adding that he has yet to hear from lawyers for either country. If the countries agree to arbitration, parties will have another 30 days to nominate three mutually agreed upon arbitrators for a panel of five. (Banglandesh has nominated noted international law specialist Vaughan Lowe from Oxford.)

Foley Hoag partners Andrew Loewenstein and Lawrence Martin are assisting Reichler in the arbitration along with international law and arbitration experts James Crawford from Cambridge and Payam Akhavan from McGill.

Reichler says he's not worried that Burma, considered a pariah state by the West, won't participate in arbitration proceedings. (While the military junta that runs Burma changed the country's name to Myanmar 20 years ago, the U.S. and some other Western countries that have imposed sanctions against the regime haven't formally recognized the change.)

"If they don't take part in the process, it will go on without them," he says. "So it's in their best interest to do so, unless they want their prospects for an international boundary acceptable to them to be lowered."

The president of the International Tribunal for the Law of the Sea, which sits in Hamburg, will appoint an arbitrator for Burma should it choose not to participate. A copy of Bangladesh's arbitration claim was not yet publicly available out of concern that parties in Burma might not have received notice.

Bangladesh should take Myanmar issue seriously

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Bangladesh needs to take the issue of Myanmar's reinforced military presence along the border more seriously, in order to safeguard its national security, The Bangladesh Institute of Peace and Security Studies (BIPSS) was reported as saying in a 12 September article in the Independent. The BIPSS is a think-tank that deals with security issues in South and Southeast Asia.

It recently issued a publication suggesting that there are many contentious issues with neighboring Myanmar that need to be resolved to protect the national interest. Such issues as the Rohingya refugees and the dispute over the maritime boundary have daunted relations between the two neighbors recently, said an article published in the periodical BIPSS Focus.

The article said that Myanmar's recent strengthening of its military presence in Rakhine State, which borders Bangladesh, is a big concern. "Bangladesh needs to take Myanmar's recent military ambition seriously," the article, titled "Bangladesh-Myanmar Relations: The Security Dimension" stated. The article points out that Myanmar has increased movement of troops while construction of concrete pillars and barbed-wire fences along the border has been sped up.

The military junta in Myanmar has also extended the runway of the Sittwe airport, enabling operation of MiG-29 multi-role combat aircraft and all 12 MiG-29 aircraft of the Myanmar Air Force currently deployed in Sittwe, the article stated. Land has also been acquired for the construction of another airport in Buthidaung, it adds. The BIPSS says that massive repair and reconstruction of road, bridges, and culverts is being carried out in the Western Command area while tanks, artillery guns, Recoilless Rifles, and mortars are being unloaded regularly at the Buthidaung river jetty.

Saying that such developments are "alarming" for Bangladesh, the BIPSS article adds that Myanmar has been constructing barbed-wire fencing along the border with Bangladesh since March 2009, and approximately 38 kilometers of fencing was completed by July of this year. Considering all these issues, the article states, "It is observed that Bangladesh - Myanmar relations have developed through phases of cooperation and conflict." "Conflict in this case is not meant in the sense of confrontation, but only in the sense of conflict of interests and resultant diplomatic face-off," it says.

The article further warns that "unfriendly relations with Myanmar can benefit small insurgent groups living in the hilly jungle areas of the southern portion of the Chittagong Hill Tract, which can cause some degree of instability in the area and become a serious concern for national security." The article also suggests that Bangladesh can benefit in ways by maintaining a good relationship with Myanmar, which in turn has a good friendship with China. "[Myanmar] is the potential gateway for an alternative land route opening towards China and Southeast Asia other than the sea," it says. "Such a road link has the potentiality for a greater communication network between Bangladesh and Southeast Asian countries including Thailand, Malaysia, and Singapore."

Moreover, with a rich natural resource base, Myanmar is a country with considerable potential, the article continued. "Myanmar's forests and other natural resources like gas, oil, and stones are enormous, from which Bangladesh can be benefited enormously," it says. The article suggests that policymakers review the existing defense priorities to suit the magnitude of the threat currently facing Bangladesh. "The policy regarding Myanmar needs to be a careful combination of effective diplomacy while safeguarding our security interests," it said.